The primary role of the General Counsel and Vice Chancellor for Legal Affairs (hereinafter, “General Counsel”) at East Carolina University is that of counselor (“Attorney and Counselor at Law”) with respect to legal issues. Since the General Counsel’s client is the University as an institutional entity, counseling activities should be directed toward institutional officers acting in their official capacities. Ideally, the bulk of such activities will be “preventive” in nature.
Because the University is a large and complex organization, the General Counsel often finds in daily practice some conflicts between the interests of individual administrators, faculty, staff, students and other constituencies served or otherwise affected by the University’s operations. Conflicts of interest between individual officials and the institution also arise occasionally. Great care must be taken to ascertain differences between individual and institutional interests when counseling personnel who, because of the nature of the institution, play multiple roles as employees and officers of the institution. The threshold question for the attorney at any given moment is: “Which officers/employees represent the client?” In order to minimize conflicts of interest and preserve the capacity of the General Counsel to deliver legal services to the University, the professional staff of that office generally cannot provide services to individual employees, students, or University-recognized organizations. To the extent that resources are available, students may seek assistance through the Student Legal Clinic.
At the campus level, the Chancellor may be identified easily as the single person whose duties and decision-making authority encompass the entire array of institutional activities on a daily basis. Therefore, the attorney-client relationship should be based primarily upon General Counsel interaction with the Chancellor and Board of Trustees, and secondarily upon interaction between the General Counsel and those to whom the Chancellor or the Board of Trustees has delegated decision-making authority.
To the extent that a broad view of the best interests of the University may be taken, the General Counsel is likely to maintain the capacity to “. . . exercise independent, professional judgment and render candid advice.” Rule 2.1 Advisor, Revised Rules of Professional Conduct of the North Carolina State Bar (2006). In this context, the General Counsel has an obligation to render legal advice and opinions to other officers and employees consistent with the attorney’s understanding of the institution, its status under the law, its mission, and the impact of pending decisions or proposed actions on the fulfillment of its mission.
When questions or disputes arise with respect to legal rights and responsibilities of University employees or students, the General Counsel should have access to all reasonable means of obtaining information on which to base advice and opinions. In light of the attorney’s obligation to protect and preserve the legal interests of the institution, and the standard of conduct contained in Rules 1.13 Organization as Client (2006) and 2.1 (2003) of the Revised Rules of Professional Conduct of the North Carolina State Bar, the General Counsel should avoid active participation (as opposed to advisory roles) in grievance hearings, institutional task forces which make recommendations to the Chancellor, and divisional task forces which report to vice chancellors or other senior administrators. If legal issues arise in the context of such activities, the attorney is in a better position to objectively analyze the facts and advise cabinet-level officers if such recommendations are not already influenced by the attorney’s substantive personal involvement or work product. For example, grievance hearings should be recognized as fact-finding processes. While recommendations on remedial action may be made by a grievance hearing committee, the decision-maker normally is the Chancellor or a vice chancellor. The attorney should advise the decision-maker on procedural issues and appropriate institutional positions rather than engage in attempts to influence the decisions of a fact-finding body.
The General Counsel should serve as a liaison between East Carolina University and the legal staff of The University of North Carolina. The General Counsel should communicate regularly with the legal staff in the System Office to ensure compliance with policies of The University of North Carolina, as well as state and federal law. It should be noted that there may be occasional disagreement between the General Counsel and members of the legal staff in the System Office on specific legal issues of concern to East Carolina University. In light of the status of East Carolina University as a constituent institution of The University of North Carolina, the General Counsel should advise the Chancellor of any such disagreement whenever possible in such a manner as to allow the Chancellor opportunity to thoroughly review the issue with appropriate officials in the UNC System Office prior to the Chancellor making a decision or taking other action.
Likewise, the General Counsel should serve as a liaison between East Carolina University and the North Carolina Department of Justice. While the Attorney General has statutory responsibility for representation of the University in litigation, the General Counsel should be prepared to assist the Attorney General’s staff in the process of discovery and other pre-trial activities, as well as any other matter in which the Attorney General’s staff requests assistance in representation of the University. The General Counsel should consult with legal staff in the UNC System Office prior to recommending that the Chancellor request a formal opinion from the Attorney General.
The General Counsel may be called upon from time to time for advice or recommendations on matters of institutional policy, as opposed to legal counsel. The General Counsel should be careful to avoid any implication that such “policy advice” is mandated by authority of law unless applicable law clearly dictates an institutional position or action. The General Counsel should also discern and avoid situations in which competing factions within the University community attempt to disproportionately weight their respective positions on policy matters with “the General Counsel’s advice.”
The ideal of preventive law practice implies the necessity of providing a large number of people within the institution access to legal services relevant to their functions as officers or employees of the institution. The General Counsel must balance the demand for services, both in volume and scope of subject matter, with the obligation to provide legal services which address the most critical issues affecting the University. Within the current organizational structure of East Carolina University and traditional notions of the attorney-client relationship, the General Counsel should seek determination of priorities for legal services by the Chancellor and other senior administrators.